Definations

Question 1

Larceny

Stealing

Answer 1

Under common law, Larceny is the taking and carrying away of the tangible personal property of another by trespass with intent of permanently deprive the other of the property.

Question 2

Embezzlement

Answer 2

Under common law, Embezzlement is the fraudulent appropriation or conversion of personal property of another by one to whom the owner has entrusted possession.

Question 3

False Pretenses

Answer 3

Under common law, False Pretenses is obtaining title to the property of another by an intentional misrepresentation of fact with the specific intent to defraud the original titleholder.

Question 4

Receipt of Stolen Property

Answer 4

Under common law, Receipt of stolen property is receiving possession and control of stole property with knowledge that the property was obtained in a criminal way by another person and with intent to permanently deprive the owner of the property.

Question 5

Robbery

Forcible stealing

Answer 5

Under common law, Robbery is the taking and carrying away of the tangible personal property of another by trespass, by force or threats of force, with intent to permanently deprive the other of the property. Robbery requires all the elements of larceny, plus the additional element of force or threats of force.

Question 6

Extortion

Blackmail

Answer 6

Under common law, Extortion is obtaining property from another by written or oral threats of physical harm or other improper threats of harm.

Question 7

Burglary

Answer 7

Under common law, Burglary is the breaking and entering into the dwelling of another at night with the specific intent to commit a felony inside.

Question 8

Arson

Answer 8

Under common law, Arson is the malicious burning of a dwelling of another.

Question 9

Attempt

Answer 9

Under common law, Attempt occurs when the defendant engages in conduct in the direction of committing a crime with the specific intent to commit the crime, but falls shorts of completing the crime.

Question 10

Motion to Dismiss

Answer 10

Under CPLR § 3211, the court properly grants a motion to dismiss when, taking the allegations of the complaint in the light most favorable to the plaintiff, the court finds that the complaint is defective and cannot be maintained.

Question 11

Motion for Summary Judgment

Answer 11

Under CPLR § 3212, the court properly grants a motion for summary judgment when, after considering the affidavits and any other materials the parties submit, in the light most favorable to the non-moving party, it decides that neither the plaintiff nor defendant presents any triable issue of fact, and the dispute may be decided entirely as a matter of law.

Question 12

Evidence

Answer 12

Under common law and the FRE, evidence is every type of proof, presented in court and allowed by the judge, intended to help the fact finder reach a conclusion about facts material to the case.

Question 13

Relevance

Answer 13

Under FRE 401, evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence and (2) the fact is of consequence in determining the action.

Question 14

Discretionary Relevance

Answer 14

Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 15

Character Evidence

Answer 15

Under common law and the FRE, character evidence is evidence offered to show the character or character trait of a party or witness. As a general rule, character evidence is not admissible to prove that a person acted in conformity with the character or character trait on a particular occasion, subject to several exemptions.

Question 16

Impeachment

Answer 16

Under common law and the FRE, impeachment is the process of calling the credibility of a witness into question. The primary method of impeachment is by cross-examination; other times, witnesses may be impeached by extrinsic evidence to cast a cloud of doubt on the witness’s credibility.

Question 17

Negligence

Answer 17

Under common law, negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised under the same set of facts. To establish a prima facie case of negligence, the following elements must be present: duty, breach of duty, actual and proximate cause, and damages.

Question 18

Trespasser

Answer 18

Under common law, a trespasser is a person who enters the landowner’s land without permission or privilege.

Question 19

Licensee

Answer 19

Under common law, a licensee is a person who enters the landowner’s land for his own purpose or business, with the landowner’s permission, including social guests.

Question 20

Invitee

Answer 20

Under common law, an invitee is a person who enters the landowner’s land because he was expressly or impliedly invited by the landowner.

Question 21

Negligence Per Se

Answer 21

Under common law, negligence per se is a legal doctrine that provides that in certain circumstances a safety statute or regulation may be used to set the standard of care in a negligence case. To establish a breach of that standard under negligence per se, the following elements must be present: the defendant violated the statute or regulation, the violation caused the type of harm that the statute or regulation is designed to prevent, and the plaintiff belongs to the protected class the statute or regulation is designed to protect.

Question 22

Res Ipsa Loquitur

Answer 22

Under common law, the doctrine of res ipsa loquitur holds that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of unreasonable conduct so as to establish a breach of the duty owed to the plaintiff.

Question 23

Contributory Negligence

Answer 23

Under common law, a defendant in a contributory negligence jurisdiction may not be liable for negligence if the plaintiff was injured, in part, because of his own negligence.

Question 24

Comparative Negligence

Answer 24

Under common law, comparative negligence allows a plaintiff, who would have been completely barred from recovery under contributory negligence, to recover a percentage of his claimed damages.

Question 25

Assumption of Risk

Answer 25

Under common law, the plaintiff may be barred from recovery if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risk of any damage caused by the defendant’s acts. A plaintiff will not recover for a negligence claim if he assumed the risk of any damage created by the defendant’s action.

Question 26

Common Law Contract

Answer 26

Under common law, a contract is a legally enforceable agreement. In most instances, contract formation requires a bargain in which there is a manifestation of mutual assent to the exchange and also consideration. A valid contract is formed when there is an offer, an acceptance, and consideration.

Question 27

UCC Contract

Answer 27

Under the UCC, a contract is a total legal obligation that results from the parties’ agreement. In most instances, contract information requires a bargain in which there is a manifestation of mutual assent to the exchange and also consideration. A valid contract is formed when there is an offer, an acceptance, and consideration.

Question 28

Offer

Answer 28

Under common law, an offer is a manifestation of present contractual intent, communicated to an identified offeree, containing definite and certain terms.

Question 29

Common Law Option Contract

Answer 29

Under common law, an option contract is a promise that meets the requirements of a valid contract and limits the promisor’s power to revoke the offer. Under common law, separate consideration must be given for the option to be effective.

Question 30

UCC Firm Offer Rule

Answer 30

Under the UCC, an offer by a merchant to buy or sell goods in a signed record that gives assurance that it will be held open is irrevocable, even without consideration, during the time stated or, if no time is stated, for a reasonable time, but for no longer than three months.

Question 31

Counteroffer

Answer 31

Under common law, a counteroffer is an offer made by an offer to the offeror that relates to the same matter as the original offer, but proposes different terms.

Question 32

Acceptance

Answer 32

Under common law, acceptance is a manifestation of assent to the terms of an offer in the manner authorized by the offer. The accepted terms must mirror the terms of the offer for a valid acceptance under common law.

Question 33

UCC Battler of the Forms- If at least one party is not a Merchant

Answer 33

Under the UCC, a definite and seasonable expression of acceptance in a record operates as acceptance, even if the acceptance contains new or different terms. If at least one party to a contract is not merchant, additional or different terms are viewed as proposals to modify the contract. Additional or different terms do not become part of the contract unless the offeror agrees.

Question 34

UCC Battle of the Forms- If both parties are Merchants

Answer 34

Under the UCC, a definite and seasonable expression of acceptance in a record operates as acceptance, even if the acceptance contains new or different terms. If both parties to a contract are merchants, additional terms will be incorporated into the contract unless: 1.- the other party objects to the new terms within a reasonable time, 2.- the terms materially alter the contract, or 3.- the offer expressly limits acceptance to the exact terms of the offer.

Question 35

Consideration

Answer 35

Under common law, consideration is a bargained-for legal detriment.

Question 36

Fee Simple Absolute

Answer 36

Under common law, an estate in fee simple is an absolute ownership of an estate of infinite duration.

Question 37

Defeasible Fee Simple

Answer 37

Under common law, a defeasible fee simple is a fee simple estate that is subject to termination by the happening of a specified event. Defeasible estates thus terminate unnaturally.

Question 38

Fee Simple Determinable

Answer 38

Under common law, a fee simple determinable is an estate that automatically terminates and reverts to the grantor on the happening of a specific event.

Question 39

Fee Simple Subject to Condition Subsequent

Answer 39

Under common law, a fee simple subject to condition subsequent is an estate where the grantor retains the power to terminate the estate of the grantee on the happening of a specified event.

Question 40

Fee Simple Subject to Executory Interest

Answer 40

Under common law, a fee simple subject to executory interest is an estate where upon the happening of a specified event, the estate is automatically forfeited in favor of someone other than the grantor.

Question 41

Life Estate

Answer 41

Under common law, a life estate is an estate that is measured by the explicit lifetime of a person and never in terms of years.

Question 42

Life Estate Pur Autre Vie

Answer 42

Under common law, a life estate pur autre vie is a special type of life estate where the life estate is measured by a life other than that of the grantee.

Question 43

Tenancy in Common

Answer 43

Under common law, a tenancy in common is a tenancy by two or more persons, in equal or unequal divided shares, who each have an equal right to possess the whole property but no right of survivorship.

Question 44

Joint Tenancy

Answer 44

Under common law, a joint tenancy is a tenancy by two or more persons, who take identical interests simultaneously by the same instrument with the same right of possession and with a right of survivorship.

Question 45

Tenancy by the Entirety

Answer 45

Under common law, a tenancy by the entirety is a tenancy between husband and wife, arising when a single instrument conveys property to the husband and wife, creating and indestructible right of survivorship, and the interest created is not a joint tenancy.

Question 46

Adverse Possession

Answer 46

Under common law, a trespasser can be transformed into a rightful owner of property if he has had continuous, open and notorious, actual, and hostile possession of another’s (though not the government’s) property of a statutory prescribed period of time.

Question 47

Antenuptial and Postnuptial Agreement

Answer 47

Under DRL, an ante nuptial agreement is an express contract between prospective spouses in contemplation of marriage, typically addressing economic matters in the event of divorce after marriage, provisions for testamentary dispositions, and any other topics related to the marriage.

Question 48

Doctrine of Equitable Estoppel

Answer 48

The doctrine of equitable estoppel prevents a biological father from claiming paternity, or it prevents a non-biological father from denying paternity after he previously claimed to be the father or acquiesced to being the father for a prolonged period.

Question 49

Adultery

Answer 49

Under DRL, adultery is an act of sex voluntarily performed with another person who is not one’s spouse during a marriage.

Question 50

Live Apart for One Year or More Pursuant to a Written Separation Agreement

Answer 50

Under DRL, a separation agreement is a legally enforceable document in which husband and wife decide to live apart form each other. The separation agreement must be freely made, in writing, signed by both parties, acknowledged, and filed in the office of the county clerk where either party resides prior to the divorce.

Question 51

Maintenance (Commonly known as alimony)

Answer 51

Under DRL, maintenance is payments provided for in a valid agreement between the parties, or awarded by the court, to be paid at fixed intervals for a definite or indefinite amount of time. An award of maintenance will terminate upon the death of either party or upon the recipient’s valid or invalid marriage, or upon modification.

Question 52

Marital Property

Answer 52

Under DRL, marital property is all property acquired by the spouses during the marriage or prior to the separation agreement regardless of how the property is titled.